The recent decision of Parmar v. Tribe Management Inc. [Parmar] is the first civil court decision in Canada that considers "unpaid leaves of absence" for non-compliance with an employer's mandatory COVID-19 vaccination policy and whether such leaves are deemed to be constructive dismissals. In this decision, the British Columbia Supreme Court (the "Court") found that an employee was not constructively dismissed when she was placed on an unpaid leave of absence by her employer for refusing to comply with her employer's vaccination policy.
In the Fall of 2021, the employer, Tribe Management Inc. ("Tribe"), announced that it would be implementing a policy which would require all employees to become fully vaccinated against COVID-19 by a specific date. The policy provided for medical or religious exemptions and allowed for extra time for those employees who were unable to meet the deadline imposed by the employer.
Ms. Deepak Parmar, an accounting professional with approximately 19 years of experience, alleged that she was constructively dismissed from her employment with Tribe when she was placed on an unpaid leave of absence after refusing to comply with Tribe's vaccination policy. Ms. Parmer did not raise any medical or religious exemptions.
At trial, Ms. Parmar stated that she refused to get vaccinated due to her concerns that the vaccines had limited data pertaining to their long-term efficacy and health implications for certain individuals. She expressed a hesitancy to get vaccinated for fear of negative side effects, given her family's health history on both her parents side.
Ms. Parmar proposed various alternatives to vaccination with the possibility of working from home, working in a hybrid-model, or even undergoing rapid testing daily when she was required to attend at the office. Although Ms. Parmar had expressed her vaccination concerns, the employer was not willing to accommodate her, stating that there would be no exceptions to the policy save for bona fide medical and religious exemptions.
The Court dismissed Ms. Parmar's constructive dismissal claim, finding that the employer's vaccination policy was reasonable and lawful.
In this decision, the Court made some comments that are highly beneficial to employers who implemented a vaccination policy and/or placed employees on a leave of absence for failure to comply with the policy. Notably:
- The Court took judicial notice that COVID-19 is an easily transmissible, potentially deadly virus, and that vaccines are safe and effective.
- The Court recognized that the vaccination policy reflected Tribe's statutory obligation to ensure the health and safety of its employees in the workplace.
- The Court noted that the "extraordinary circumstances of the pandemic in the winter of 2021 and January 2022" made it reasonable for Tribe to introduce this policy.
- The Court accepted the policy's consideration of balancing the employer's business interests along with the health and safety of its employees.
The Bottom Line
The decision of implementing a vaccination policy at the peak of the pandemic was in line with public health guidance and government directives and thus, was reasonable and will most likely be supported judicially in future decisions. The court, however, will still take a fact-specific, contextual approach to determine the reasonableness of other vaccination and pandemic-related policies. It is important to note that what worked in Fall 2021, may not work in Fall 2022 and, each case will turn on its own facts.
At Hyde HR Law, our expert lawyers regularly assist clients with effective litigation strategies and can answer any questions relating to workplace policies. Please do not hesitate to contact us.